Salil Kumar Datta, J.
1. This is an appeal by the defendant tenant against the appellate judgment and decree of affirmance in a suit for eviction.
2. The plaintiff's case in brief, Is that the defendant was a monthly tenant of the suit premises under the plaintiffs, at a monthly rental of Rs. 30/-according to English calendar month. The defendant had been a defaulter in payment of rent since December, 1954 and the tenancy was determined by notice to quit dated April 23, 1956, with effect from the expiry of May 1956. As the defendant failed to vacate, the suit for khas possession of the suit premises on eviction of the defendant therefrom, was instituted on August 13, 1956.
3. The defendant contested the suit filing a written statement, and he denied that he was a defaulter, as due to assertion of rival claims on the rent of the suit premises, he could not deposit rent in time. Service of notice aa also the validity and sufficiency thereof was challenged.
4. The suit was tried on evidence before the trial court which held on the question of default, which was the only issue pressed, that the defendant was admittedly a defaulter in payment of rent, for the period from December 1954 to April 1956, which was deposited in June or July 1956. The trial court further held that under provisions of Section 40(2) (b) of the West Bengal Premises Tenancy Act, 1956 (West Bengal Act 12 of 1956), the landlord could take advantage of the defaults before the commencement of the said Act. Accordingly the suit was decreed,
5. An appeal was preferred therefrom by the tenant defendant and the appellate court, in agreement with the trial court, held that the tenant was a defaulter and even under Section 40 of the West Bengal Premises Tenancy Act, 1956, the landlord was entitled to sue on the defaults under the repealed Act also. The appeal was accordingly dismissed and the present appeal is against the said appellate judgment and decree.
6. Mr. Ramaprasanna Bagchi, the learned Advocate appearing for the defendant appellant, has contended that the suit is governed by the West Bengal Premises Tenancy Act, 1956, (hereinafter referred to as the 1956 Act), that the defaults committed by the tenant prior to March 31, 1956, when 1956 Act came into force, cannot be taken into consideration, Section 40 (2) (b) thereof having no application, and that, there being only one default for April 1956 after 1956 Act, there was no default in payment of rent for two months within a period of twelve months as required under Section 13 (1) (i) of the 1956 Act. He, therefore, has urged that the suit for recovery of possession is not maintainable in law.
7. Mr. Charu Chandra Ganguly, the learned Advocate for the plaintiffs respondents, has contended that the defaults under the 1956 Act, as also the prior defaults under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (West Bengal Act 17 of 1950), hereinafter referred to as the 1950 Act, can be tagged and that the landlord was entitled to bave a decree on grounds of default committed during December, 1954 to April, 195G. His further contention is that assuming that the 1956 Act applies to the case, Section 13 (1) (i) thereof is to be read along with Section 17 of the said Act, requiring the defendant to make deposit of rent as provided in the section, and that there being no deposit of rent as required as aforesaid and the tenant being defaulters for March and April 1956, the Court should have struck out the de-ience against delivery of possession and proceeded with the hearing of the suit. Mr. Ganguly has also contended that the tenant was a defaulter in payment of rent for May 1956, which was not deposited till July 1956, as will appear from records. Lastly Mr. Ganguly has contended that the right accruing to the landlord and a liability incurred by the tenant were preserved and were made enforceable by Section 40 (2) (b) of the 1956 Act.
8. Let us first consider whether the provisions of the 1950 Act or of the 1956 Act are applicable to the instant case. The 1956 Act came into force onMarch 31, 1956, while the tenancy of the defendant subsisted till May 1956. On the relevant date i.e. March 31, 1956 and even thereafter, the tenancy of the defendant was in existence and continuing. It is obvious that the defendant, on the commencement of the 1956 Act, became entitled to the protections against eviction as provided in the said Act and whatever right accrued to the landlord under the 1950 Act could no longer be available or enforced against the defendant in the said circumstances. The provisions of Section 40 (2) (b) of the 1956 Act have no application to the case and there was no proceeding or remedy against the tenant in respect of his default in payment of rent which could be instituted or enforced under; the 1950 Act, as in view of the subsistence of the tenancy after the commencement of the 1956 Act, the tenancy of the defendant became as from the said date, one under the 1956 Act.
9. The next question is whether the defaults committed by the tenant in payment of rent from December 1954 to April, 1956, disentitle him from any protection under the 1956 Act. Of these defaults, barring the default of April, 1956, all defaults were made when the 1950 Act was in force. Under Section 105 of the Transfer of Property Act, 1882, rent for a lease is payable periodically or on specified occasions. In absence of any agreement for payment of rent on specified occasions, the rent of a monthly tenancy which is a letting for an indeterminate time and is liable to determination by notice, must be legally payable on the last day of each month of the tenancy, though the Acts governing the tenancy provides a grace period in absence of agreement. Accordingly the rent for March, 1956 was payable on March 31, 1956, and cannot be treated as a default under the 1956 Act. The only default, therefore, under the 1956 Act is the default for April, 1956.
10. It has been argued that the defaults, committed even prior to the commencement of the 1956 Act, can be taken into consideration in determining whether the tenant is a defaulter in payment of rent or not in a suit for eviction under the 1956 Act. Reliance was placed on the decision of Chatterjee, J. in Satyabrata v. Santosh Kumar, (19615 65 Cal WN 592, in which case it was held that the pre-Act default could be taken into consideration, as the proviso to Clause 4 of Section 17 only says 'defaults within a period of 12 months' and not 'defaults within a period of 12 months provided they occurred after the Act'. It was further held that the defaults under the 1950 Act were 'defaults inpayment of rent referred to in Clause (i)to Sub-section (1) of Section 12', whereas under the 1956 Act there is no such provision. Accordingly it was held that in absence of any reference to the ejectment suit as in the 1950 Act, the word 'default' in the 1956 Act was used without any reference to any period or any suit whatsoever. Chatterjee, J. was therefore of the opinion that pre-Act defaults could be taken into consideration in determining the liability of a tenant for ejectment on the ground of default in a suit for eviction under the 1956 Act.
11. In the Indian Iron & Steel Co. Ltd. v. Anil Kumar, (1962) 66 Cal WN 687, it was held by a Division Bench of this Court, in a Letters Patent Appeal, that the 1950 Act having come into force at Burnpur in July 1951, the defaults committed prior to that date could not be taken into consideration for the purpose of the proviso to Sub-section (3) of Section 14 of the 1950 Act,
12. In Eanibala Debi v. Kamal Krishna, (1965) 69 Cal WN 511, it was held by P. N. Mookerjee, J, as follows;
'Having regard, again, to the scheme of 1956 Act and the conditions, under which a default occurs, which, by the way are not the same as in the preceding statute, pre-Act defaults would not be defaults under the said Act and would not be available to the plaintiff-landlord, relying on the said 1956 Act.'
13. In Kasturilal v. Ramkrishna-lal, (1966) 70 Cal WN 680, it was held that the 'period of 12 months' referred to in Section 13(1) (i) and Section 17(4) proviso of the 1956 Act is referable to any period of 12 months between the commencement of the Act and the institution of the suit. Again in Chiranjilal Agarwalla v. Bandhuram Panwalla, ILR (1966) 1 Cal 673, P. N. Mookerjee, J. inter alia observed as follows:--
'Indeed, if I may say so with respect, there are considerable difficulties in treating pre-Act defaults as defaults under the new or 1956-Act and an acceptance of that position that is, of the view of Chatterjee, J. would lead to serious anomalies and may to some extent, go against, or be in conflict with, the purpose of the new Section 40 (2) (b) of the said 1956 Act brought in by the amendment.'
14. In Gopal Chandra v. Murari Mohan, (1958) 62 Cal WN 614, it was held that in applying the proviso to Section 14 (3)) to suits instituted when the 1950 Act was in force, the court was to see whether during any period of 18 months between the dates of the Act and the institution of the suit, there had been three defaults of the nature indicated. In Ajit v. Surendra, : AIR1953Cal733 Chakravartti, C, J. observed as follows:--
'It is now clear on a review of all possible cases that even if Section 18 (5) (of 1950 Act) be read as not requiring the application of Section 14 (3) with the proviso thereto omitted, the proviso can apply and bar relief only in cases where defaults of the requisite number. and nature have been committed after the amending Act came in force. Defaults committed before the Act of 1950 or non-payment between the dates of that Act and the amending Act would not attract the proviso and are, therefore, immaterial.'
15. Chatterjee, J. however in (1961) 65 Cal WN 592 (supra) was unable to accept the contention that pre-Act defaults were not to be taken into consideration as, to hold otherwise, would be to add words underlined in the proviso to Section 17 (4) of the 1956 Act reading it as follows:--
'Defaults within a period of 12 months provided they occurred after the Act.'
It was further held that while default in 1950 Act was a definite kind ot default viz., default in relation to the suit for ejectment under Section 12 (1) (i) of the 1950 Act, there is no reference to suits filed under the Act in the 'default' of 1956 Act. According to Chatteriee, J. the intention of legislature is not to give any restriction as to the period during which the default took place, provided it took place within twelve months.
16. It appears, however, the 'default' as contemplated under the 1956 Act for the purpose of eviction under Clause (i) of Section 13 (1) is the default committed by a tenant either in not paying rent in terms of Section 4 (2) i.e. within the time fixed by contract or in absence of such contract, by the fifteenth day of the month next following the month for which it is payable or under Section 21 (1) in not validly depositing the rent with the Rent Controller. Under the ordinary law, a tenant will be liable to pay rent on the last day of the month of the tenancy and any payment after that day, though within 15th of the succeeding month, or deposits of rent with the Rent Controller, will be of no avail to cure the default. As Sections 4 (2) and 21(1) pt 1956 Act modifies the ordinary law in regard to the payment of rent for specific purposes, there will be no defaults under the 1956 Act if rent is paid in accordance with the said provisions, and, in a suit for eviction, under 1956 Act, on ground of default, the landlord will be entitled to no relief if rent is paid or deposited in accordance with the provisions of the Sections 4 (2) and 21 (1) of the said Act. Accordingly, the addition, in the 1956 Act, of words similar to those appearing in Section 12 (1) (i) of the 1950 Act is redundant and that is the reason why such words were not incorporated by the Legislature in the relevant section of 1956 Act. This 'default' again has reference to suits instituted for eviction on ground of default and does not govern the other relationship between the parties not covered by the Act. e.g. recovery of rent by distress or suit on account of nonpayment on the last day of the tenancy. Further, the legislative intent regarding the pre-Act rights and obligations etc, is evident in Section 40 (2) (b) of the 1956 Act which provides for and protects the institution or enforcement under the 1950 Act, of any proceeding or remedy relating to any right, privilege, obligation, liability, penalty, forfeiture or punishment under the 1950 Act relating to the period prior to the repeal of the said Act while the provisions of the 1956 Act are hot given retrospective operation. The provision in Section 40 (2) (b) of the said Act has been made more explicit by insertion of express words thereto by the West Bengal Premises Tenancy (Amendment) Act 1956 (West Bengal Act XVIII of 1956). It is obvious, therefore, that defaults in payment of rent as ground for eviction can never include pre-Act default in a suit for eviction under the 1956 Act.
17. Chatterjee, J. also observed that if pre-Act defaults could not be taken into consideration, no suit for eviction, on the ground of default under 1956 Act, could be filed till after twelve months of its commencement. In our opinion, this is an untenable proposition, as the period of twelve months is the maximum limit, within which, if the tenant commits four defaults in payment of rent, he is disentitled to protection aginst eviction. If the tenant makes four such defaults within a shorter period, say even within four months from the commencement of the 1956 Act, there is nothing to prevent the landlord from instituting a suit for eviction straightway without waiting further.
18. Mr. Ganguly tried to support the decree for eviction urging that the instant suit must be deemed to be a suit under the 1950 Act by reason of the provisions contained in Section 40 of the 1956 Act, as, according to him, the tenant incurred the liability to be evicted on the ground of default under the 1950 Act. The short answer to this argument is that the tenancy having been terminated after the commencement of the 1956 Act, no suit for eviction could have been instituted during the currency of the 1950 Act. As the landlord was not entitled to instituteany suit for eviction under the 1950 Act the present suit cannot be deemed to be a suit under the 1950 Act.
19. On a consideration of the relevant statutory provisions as also the authorities cited above, we must hold that the decision of Chatterjee, J. in (1961) 65 Cal WN 592 (supra) cannot be supported. We hold, contrary to the said decision, that pre-Act defaults cannot be taken in consideration for determination as to whether the tenant is a defaulter or not in a suit for eviction under the 1956 Act.
20. As the only default under the 1956 Act is for the month of April, 1956, the suit for eviction, solely on the ground of default, is not maintainable in view of the provisions of Section 13 (1) (i) of the 1956 Act.
21. It is, accordingly, ordered that the appeal be and is hereby allowed. The judgments and decrees of the courts below are set aside and the suit is dismissed. In the circumstances, the parties will bear their respective costs throughout.
A.C. Sen, J.
22. I agree.